Prof.

NS Punchihewa, FOL, UOC

 Agenda
 3.1 Effective comunication
 3.2 Style, grammar and language
 3.3 Writing essays and reports
 3.4 Answering problem questions/ fact patterns-
coherent arguments
 3.5 Standard styles of referencing and its importance
in legal writing
 3.6 Exam preparation, strategies and answering a
legal question
 3.7 plagiarism and academic misconduct Reasoning
 3.8 Legal reasoning
Law is the glue that holds
civilization together
“Law and order exist for the purpose of establishing
justice and that when they fail in this purpose they
become the dangerously structured dams that block
the flow of social progress.”
(Martin Luther King Jr., 1963)
 Critical Legal Thinking and Innovation
 Critical legal thinking demonstrates that
deliberate consideration is given to the
merits or validity of claims or arguments
as opposed to the immediate acceptance
of an idea that suggests itself as a
solution to a problem.
 It is arriving at considered conclusion
which can be defended and justified.
 Legal Reasoning
 Objective: understand and develop the skill of legal
reasoning
 Argument and logical reasoning is clearly
indispensable for the practice of law.
 Judges and lawyers apply legal reasoning in one form
or another in their day-to-day affairs in providing
solutions to immediate problems.
 Legal Reasoning
 The Common Law is tolerant of much illogicality,
especially on the surface; but no system of law can be
workable if it has not got logic at the root of it. (Lord
Devlin, Hedley Byrne & Co., Ltd v Heller & Partners
[1964] AC 465, 516)
 We examine three forms of legal reasoning which are
used by lawyers and judges in the common law.
 Inductive reasoning,
 Deductive reasoning and
 Reasoning by analogy (Case-Based) -That is, treat like
cases alike and different cases differently.
 Inductive Reasoning
 Inductive reasoning involves reasoning from specific
examples to propose a general rule. Inductive
reasoning is usually associated with
extrapolating/predicting general rules from different
cases where specific facts vary.
 Common law as a whole can be described as an
inductive system of law because it involves
developing principles ‘bottom-up’ from specific cases
rather than ‘top-down’ from highly generalized legal
principles.
 Deductive Reasoning
 Deductive (Rule-Based) Reasoning
 Deductive logic is the reverse: reasoning based upon
a general rule to determine the appropriate outcome
in a specific case.
 There is a general law, and legal reasoner uses that
rule to infer what will happen in some particular fact
situation.
 Typically, deductive logic is applied in reasoning from
statutes, which form a rule of general application
under which specific facts may fall.
 Deductive Reasoning contd.
 In deductive legal reasoning, the decision
maker begins with a specific set of facts, looks
at the law that applies to those facts, and
reaches a verdict.
 If Joe's Liquor Store sells beer to 16-year-old
Richard, and there is a law prohibiting the sale
of alcohol to anyone under the age of 21, then
Joe's Liquor Store is guilty.
Inductive reasoning contd.
 Inductive reasoning is reasoning from the specific to
the general. Lawyers use inductive reasoning to
synthesize/ combine rules. In other words, lawyers
take the holdings from several cases and by
synthesizing those specific cases, they come up with a
general rule.
 Deductive Reasoning contd.
 In preparing a case, an attorney will go back and forth
between developing a coherent version of the facts
that fits the law and conducting legal research to find
out which laws frame the facts in the best possible
way.
 All in all, the Rule-based reasoning is the most
important type of legal reasoning. In rule-based
reasoning, you take a rule (a statute or a case
holding) and apply it to a set of facts.
Inductive and Deductive Reasoning
 In reality, these two reasoning methods work
together to form a significant part of a lawyer’s tools
of analysis (These complementary forms of
reasoning).
 These complementary forms of reasoning are central
to learning to ‘think like a lawyer’.
 Analogical (Case-Based) Reasoning
 In the Anglo-American common law tradition, cases
are decided by examining the patterns of decisions in
earlier, related cases.
 Reasoning by analogy concerns finding similarities.
Reasoning by analogy in the law occurs when one
argues that the facts of the precedent case are like
the facts of the present case so that the rule of the
precedent case should apply to the present case.
 Reasoning by analogy
 Analogical reasoning is one of the most common
forms of reasoning employed by lawyers.
 Analogy in this context compares or contrasts facts,
policy, or reasoning of one case with the facts, policy,
or reasoning of another case.
 That is, treat like cases alike and different cases
differently.
Review Question
 What kind of reasoning was primarily employed by Lord
Atkin in his famous judgment in Donoghue v Stevenson?
The Words of Lord Denning
“If we never do anything which has
not been done before, we shall never
get anywhere. The law will stand still
whilst the rest of the world goes on:
and that will be bad for both.”
Parker v Parker [1985] 22 (AC) 15
“The greatest danger for most of us is not that
our aim is too high and we miss it, but that it is
too low and we reach it.”